Akamnonu v. Rodriguez

Appellate Division of the Supreme Court of New York

Akamnonu v. Rodriguez

12 A.D.3d 187, 784 N.Y.S.2d 516, 2004 N.Y. App. Div. LEXIS 13165

Appellate Division of the Supreme Court of the State of New York·Decided November 9, 2004·Published·Cited by 8 cases

Opinions

Order, Supreme Court, Bronx County (Janice L. Bowman, J.), entered May 6, 2003, which denied defendant’s motion for summary judgment dismissing the complaint, affirmed, without costs.

Defendant waived any objection to the evidence plaintiff submitted in opposition to the motion for summary judgment, including the “affirmation” of plaintiff’s chiropractor, by failing to contest its admissibility (see Sam v Town of Rotterdam, 248 AD2d 850, 851-852 [1998], lv denied 92 NY2d 804 [1998]). Therefore, we consider plaintiffs opposition on the merits (see Shinn v Catanzaro, 1 AD3d 195, 198 [2003]). Flaintiff offered two reports from his chiropractor which laid out the degree to which plaintiffs cervical and thoraco-lumbar ranges of motion were limited, and in which the chiropractor opined that plaintiff had suffered a “permanent impairment” which “precluded] the possibility of complete restoration.” These reports were supported by the results of an MRI. Flaintiff s submissions constituted objective evidence that he had sustained serious injury within the meaning of Insurance Law § 5102 (d), sufficient to raise a factual issue warranting denial of defendant’s motion for summary judgment.

The dissent would make it plaintiffs burden to explain the gap of 2V2 years between his initial visits to a chiropractor and his follow-up visit on January 8, 2003. While a medical expert in Manzano v O’Neil, one of the cases decided with Toure v Avis Rent A Car Sys. (98 NY2d 345, 355 [2002]), explained the reason for discontinuation of treatment, the failure to do so does not dictate summary resolution of the serious injury issue. A plaintiff is not required to explain why his treatment was not continuous, and lack of continuity does not determine as a matter of law whether he or she has suffered a “serious injury.” Because a course of treatment is fact specific and is commensurate with the nature of the alleged injuries and the customary standard of care, the issue of a treatment gap bears only [188]*188upon the weight to be accorded the medical opinion, a matter which is clearly within the province of a jury (see e.g. Rosario v Universal Truck & Trailer Serv., 7 AD3d 306 [2004]; Williams v Parke, 1 AD3d 240 [2003]; Ramos v Dekhtyar, 301 AD2d 428 [2003]; Manrique v Warshaw Woolen Assoc., 297 AD2d 519, 520-521 [2002]; Bitici v New York City Tr. Auth., 245 AD2d 157 [1997]; Cassagnol v Williamsburg Plaza Taxi, 234 AD2d 208 [1996]). Concur—Mazzarelli, Ellerin and Lerner, JJ.

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Order, Supreme Court, Bronx County (Janice L. Bowman, J.), entered May 6, 2003, which denied defendant’s motion for summary judgment dismissing the complaint, affirmed, without costs.

Defendant waived any objection to the evidence plaintiff submitted in opposition to the motion for summary judgment, including the “affirmation” of plaintiff’s chiropractor, by failing to contest its admissibility (see Sam v Town of Rotterdam, 248 AD2d 850, 851-852 [1998], lv denied 92 NY2d 804 [1998]). Therefore, we consider plaintiffs opposition on the merits (see Shinn v Catanzaro, 1 AD3d 195, 198 [2003]). Flaintiff offered two reports from his chiropractor which laid out the degree to which plaintiffs cervical and thoraco-lumbar ranges of motion were limited, and in which the chiropractor opined that plaintiff had suffered a “permanent impairment” which “precluded] the possibility of complete restoration.” These reports were supported by the results of an MRI. Flaintiff s submissions constituted objective evidence that he had sustained serious injury within the meaning of Insurance Law § 5102 (d), sufficient to raise a factual issue warranting denial of defendant’s motion for summary judgment.

The dissent would make it plaintiffs burden to explain the gap of 2V2 years between his initial visits to a chiropractor and his follow-up visit on January 8, 2003. While a medical expert in Manzano v O’Neil, one of the cases decided with Toure v Avis Rent A Car Sys. (98 NY2d 345, 355 [2002]), explained the reason for discontinuation of treatment, the failure to do so does not dictate summary resolution of the serious injury issue. A plaintiff is not required to explain why his treatment was not continuous, and lack of continuity does not determine as a matter of law whether he or she has suffered a “serious injury.” Because a course of treatment is fact specific and is commensurate with the nature of the alleged injuries and the customary standard of care, the issue of a treatment gap bears only [188]*188upon the weight to be accorded the medical opinion, a matter which is clearly within the province of a jury (see e.g. Rosario v Universal Truck & Trailer Serv., 7 AD3d 306 [2004]; Williams v Parke, 1 AD3d 240 [2003]; Ramos v Dekhtyar, 301 AD2d 428 [2003]; Manrique v Warshaw Woolen Assoc., 297 AD2d 519, 520-521 [2002]; Bitici v New York City Tr. Auth., 245 AD2d 157 [1997]; Cassagnol v Williamsburg Plaza Taxi, 234 AD2d 208 [1996]). Concur—Mazzarelli, Ellerin and Lerner, JJ.

Akamnonu v. Rodriguez, 12 A.D.3d 187, 784 N.Y.S.2d 516, 2004 N.Y. App. Div. LEXIS 13165 (N.Y. Ct. App. 2004).

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